Gautam Seth vs Jaiveer Singh
2017 Latest Caselaw 4959 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 783/2017

%                                                 12th September, 2017

GAUTAM SETH                                               ..... Appellant
                          Through:       Mr. Ajay Kohli and Mr. R.K.
                                         Singla, Advocates.

                          versus

JAIVEER SINGH                                            ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. Appl. Nos. 33243-44/2017 (for exemptions)

Exemptions allowed, subject to all just exceptions.

The applications stand disposed of.

C.M. Appl. No. 33245/2017 (for condonation of delay in re-filing the appeal)

Delay of 73 days in re-filing of the appeal stands condoned.

C.M. stands disposed of.

RFA No. 783/2017

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the appellant/plaintiff

impugning the judgment of the trial court dated 22.2.2017 dismissing

the suit for recovery of Rs.11,00,000/- filed by the appellant/plaintiff

along with the claim of interest. The relief clauses of the plaint read

as under:-

"A) A decree for the recovery of Rs.23,46,582/- (principal Rs.11,00,000/- plus interest Rs.12,46,582/- simple interest @ Rs.24% per annum w.e.f. 5.12.2007 to 17.05.2012 along with pendent lite & future interest till realisation of money B) A decree for Allow the suit with all costs.

C) Any other relief which this Hon'ble court deems fit and proper may also be granted to the plaintiff concern."

2. The relief clauses above of the plaint show that out of the

amount claimed in the suit of Rs.23,46,582/-, the principal amount

was of Rs.11,00,000/- and balance of Rs.12,46,582/- was towards

interest at 24% per annum. The amount as claimed of the principal of

Rs.11,00,000/- is as per para 4 of the plaint and this para 4 of the

plaint reads as under:-

"4. The payments details as described and shown in the ledger and banks statements are following:

On 5th December 2007 onward defendant took different-2 amount from plaintiff on different dates these dates are followings Date Amount in Rs.

     05.12.2000                                10 Lakh
     27.08.2008                                3 Lakh
     08.04.2009                                2 Lakh
     16.04.2009                                1 Lakh
     19.05.2009                                1 Lakh
     21.05.2009                                1 Lakh
     27.02.2010                                2 Lakh

And during this period defendant returned following amount of following dates:-

     Date                                   Amount in Rs.
     15.04.2009                             1 Lakh
     16.04.2009                             1 Lakh
     18.05.2009                             1 Lakh
     19.05.2009                             1 Lakh
     26.05.2009                             1 Lakh
     26.02.2010                             2 Lakh
     27.02.2010                             2 Lakh

After all transactions the pending amount due and payable from defendant is 11 Lakh Rupees alongwith interest @24% simple interest per annum."

3. In my opinion, there is no confusion whatsoever as to

how the principal amount of Rs.11,00,000/- is arrived at as claimed in

the relief clause of the suit plaint and as is sought to be argued by the

appellant/plaintiff because the entries in para 4 of the plaint show that

a total sum of Rs.20,00,000/- was paid by the appellant/plaintiff to the

respondent/defendant of which a sum of Rs.9,00,000/- was returned

and hence the last line of para 4 of the plaint refers to the principal

balance amount due being of Rs.11,00,000/-.

4. Trial court has held that the suit is barred by limitation

because each of the entry of grant of loan is a separate cause of action

and for each separate cause of action limitation commences from three

years from the date of grant of the loan. I may note that Article 19 of

the Limitation Act, 1963 provides that the limitation period is three

years from grant of the loan for filing a suit for recovery of loan which

is granted. Once loans are paid on different dates then as per Article

19 of the Limitation Act, limitation will commence from the date of

grant of each of the loan, and the trial court has rightly observed that it

is not the case of the appellant/plaintiff that a specific large amount

was agreed to be given as loan and which was thereafter given in

different installments thereafter for smaller amounts.

5. The subject suit admittedly has been filed on 22.3.2013.

Any loan therefore granted before 22.3.2010 would become barred by

limitation. Trial court has observed that the case of the

appellant/plaintiff as argued, (and which was different from the

content of para 4 of the plaint) is that actually the loan granted is only

totaling to Rs.15,00,000/- and which is on account of the three entries

dated 5.12.2000 (sic.:5.12.2007) of Rs.10,00,000/-, on 27.8.2008 of

Rs.3,00,000/- and on 8.4.2009 of Rs.2,00,000/-, and all of which dates

are before three years of the date of filing of the suit on 22.3.2013, and

hence the suit is time-barred.

6. Some clarification from this Court is necessary at this

stage, inasmuch as, though para 4 of the plaint is clear when the same

is read with the relief clause in the plaint, it is seen that the

appellant/plaintiff argued that out of the seven entries given in the

beginning of para 4 of the plaint totaling to Rs.20,00,000/-, the entries

of loan are only the first three entries of Rs.10,00,000/- dated

5.12.2007, Rs.3,00,000/- dated 27.8.2008 and Rs.2,00,000/- dated

8.4.2009, totaling to Rs.15,00,000/- inasmuch as, it was the case of the

appellant/plaintiff before the trial court as also this Court that the next

four entries of the first part of para 4 of the plaint of Rs.1,00,000/-

dated 16.4.2009, another Rs.1,00,000/- dated 19.5.2009, another

Rs.1,00,000/- dated 21.5.2009 and a sum of Rs.2,00,000/- dated

27.2.2010 are not entries showing payment of loans to the

respondent/defendant but these four entries dated 16.4.2009,

19.5.2009, 21.5.2009 and 27.2.2010 are ledger entries and bank entries

showing that first three entries dated 16.4.2009, 19.5.2009, 21.5.2009

are with respect to cheques issued by the appellant/plaintiff and which

were dishonored with the fourth entry dated 27.2.2010 being of the

return/repayment of the amount of Rs.2,00,000/- by the

respondent/defendant to the appellant/plaintiff towards the total loan

of Rs.15,00,000/-. In sum and substance what is argued by the

appellant/plaintiff was that para 4 of the plaint is not happily worded

and the suit only seeks recovery of three loan amounts being first of

Rs.10,00,000/- dated 5.12.2007, secondly a sum of Rs.3,00,000/-

dated 27.8.2008 and thirdly, a sum of Rs.2,00,000/- dated 8.4.2009.

Therefore, it is seen that the suit filed on 22.3.2013 would clearly be

beyond the period of three years as regards balance amount of

Rs.6,00,000/- out of Rs.10,00,000/- granted on 5.12.2007, a sum of

Rs.3,00,000/- paid on 27.8.2008 and a sum of Rs.2,00,000/- paid on

8.4.2009. Admittedly, the only payment relied upon by the

appellant/plaintiff to extend the limitation is a sum of Rs.2,00,000/-

paid on 27.2.2010 and the sum of Rs.2,00,000/- has to be taken

towards adjustment of part of the loan amount of Rs.10,00,000/- said

to have been loaned by the appellant/plaintiff to the

respondent/defendant on 5.12.2007. This is in view of Section 61 of

the Indian Contract Act, 1872 and which provides that when there is

no statement of the debtor as to how the amount of payment is to be

taken for discharge of each loan then the earliest loan is discharged by

the payment of the amount paid towards debt. Section 61 of the

Indian Contract Act, reads as under:-

"61. Application of payment where neither party appropriates.-- Where neither party makes any appropriation, the payment shall be applied in discharge of the debts in order of time, whether they are or are not barred by the law in force for the time being as to the limitation of suits. If the debts are of equal standing, the payment shall be applied in discharge of each proportionably." (underlining added)

7. The net and the sum and substance of the aforesaid

discussion shows that though as per para 4 of the plaint and the relief

cause of the plaint, the appellant/plaintiff claimed the principal amount

of Rs.11,00,000/- along with interest, during the course of arguments

before the trial court as also this Court it was argued that the total loan

given was only of a sum of Rs.15,00,000/- being of the entries dated

5.12.2007, 27.8.2008 and 8.4.2009 and the only repayment made by the

respondent/defendant was two sums of Rs.2,00,000/- each with the last

payment of Rs.2,00,000/- being made on 27.2.2010. Once the sum of

Rs.2,00,000/- paid on 27.2.2010 is taken towards adjustment of the

amount of Rs.10,00,000/- granted on 5.12.2007 and of which

Rs.8,00,000/- had remained after payment of Rs.1,00,000/- each on

15.4.2009 and 18.5.2009 (totaling to Rs. 2,00,000/-), the

appellant/plaintiff through the suit would be claiming a sum of

Rs.6,00,000/- being balance out of the sum of Rs.10,00,000/- paid on

5.12.2007, Rs.3,00,000/- paid on 27.8.2008 and Rs.2,00,000/- paid on

8.4.2009 i.e. balance due was of a sum of Rs.11,00,000/-,and each of

which three entries totaling to Rs.11,00,000/- are prior to three years of

filing of the suit on 22.3.2013, and therefore, qua each of these three

entries of loan dated 5.12.2007 of balance of Rs.6,00,000/-, dated

27.8.2008 of Rs.3,00,000/- and dated 8.4.2009 of Rs.2,00,000/-, the suit

filed would be beyond limitation as per Article 19 of the Limitation Act.

8. There is no merit in the appeal. Dismissed.

SEPTEMBER 12, 2017                          VALMIKI J. MEHTA, J
AK